Keller v Keller

[2009] NSWDC 172

CITATION:	Keller v Keller [2009] NSWDC 172
HEARING DATE(S):	22 June 2009
JUDGMENT DATE:	29 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Leave to commence proceedings is refused. The plaintiff should pay the defendant’s costs of the notice of motion on the basis that both motions were heard together and treated as the one motion. In other words, there should be only one set of costs.
CATCHWORDS:	LIMITATIONS - Motor Accidents Compensation Act - application for leave to commence proceedings - full and satisfactory explanation - no full account of plaintiff's knowledge and belief - time limit in s 109 (2)
LEGISLATION CITED:	Motor Accidents Compensation Act
CASES CITED:	Figliuzzi v Yonan 2005 NSWCA 290 Holt v Wynter (2000) 49 NSWLR 128
PARTIES:	Jodie KELLER Jonathon KELLER
FILE NUMBER(S):	312/09
COUNSEL:	Mr Wilson for Plaintiff Mr Guihot for Defendant
SOLICITORS:	Stacks Southern Lawyers Moray & Agnew

1. Mrs Keller was injured in a motor vehicle accident that occurred on 6 July 2000 when a vehicle driven by her then boyfriend, but now husband, failed to stop at a T-intersection and collided with headstones in a cemetery. He was breathalysed with a reading of 0.04. Ms Keller was aged eighteen years and five months, having been born on 23 February 1982. She completed the HSC in 1999 and was working at a Goulburn apartment store.

2. She was taken by ambulance to Goulburn Base Hospital but not admitted. The next day she felt faint and re-attended Goulburn Base Hospital and had a day off work.

3. Thereafter she says she experienced ongoing neck pain in increasing severity and obtained symptomatic relief by way of physiotherapy and analgesia prescribed by her general practitioners until in 2007 when she was referred for an MRI and to see a specialist from whom she received some injections.

4. She says that she was unaware that her boyfriend had any insurance that would cover her injuries, although she was aware that he had a property damage policy, apparently with the NRMA. In regard to that she was interviewed by an investigator shortly after the accident. The insurer declined Mr Keller’s claim on the basis of his blood alcohol reading. Mrs Keller says she was unaware that she could claim for an injury to herself until 2007 when, following upon her visits to her specialist, friends at work advised her she should see a solicitor.

5. This she did on 18 July 2007. A Motor Accidents Act claim form was lodged on 1 August 2007. A statement of claim was filed on 30 January 2009.

6. I have before me the defendant’s notice of motion to strike out the proceedings under s 109 of the Motor Accidents (Compensation) Act and the plaintiff’s notice of motion for leave to commence proceedings. S 109 provides that a claimant is not entitled to commence a claim more than three years after the date of the motor accident in question, except with the leave of the court.…